Legislature joins push to delicense, deregulate all sorts of professions and jobs

If there’s a professional license, there’s probably an Arizona lawmaker who wonders if it should exist.

And the Arizona Legislature, following the example of the Gov. Doug Ducey, is attacking with increased vigor the government licenses required for some jobs.

More than a dozen bills this session take aim at various professions, from taxidermists to embalmers, as part of a continued push in Arizona to deregulate occupations. Some seek to deregulate specific industries, while others push for broader limits to licenses on the whole.

Arizona has effectively become a breeding ground for licensing changes, something that states led by both parties have undertaken in recent years.

The efforts come after years of advocacy from a handful of libertarian-leaning groups like the Goldwater Institute, the Institute for Justice and the Koch-funded Americans for Prosperity. The groups claim the growing number of occupational licenses keep people out of certain jobs and protect the pocketbooks of the folks who already work in those fields.

More than a quarter of jobs in the United States require a license, they say, and such licenses can edge out young people, the poor, military families and people with criminal histories. The licenses can also serve as economic protectionism for the licensed, the groups say.

Delicensing is an active front for Ducey, the businessman-turned-governor who has repeatedly criticized government regulation and sought to diminish state boards and commissions. In recent years, the Legislature, with the governor’s support, has sought to deregulate landscape architects, geologists, driving school instructors, fruit packers and yoga instructors, with some success. Ducey pushed to delicense talent agents.

Not all professional licenses are created equal. Some delicensing doesn’t inspire much resistance – virtually no one clamored for fruit packers’ licenses – while others, like landscape architecture, have sparked fierce debate.

For people in regulated professions, the repeated knocks against their jobs and their colleagues are troublesome. They worry the public’s health and safety could be damaged if certain jobs don’t require licenses.

Janice Burnett, executive director of the American Council of Engineering Companies of Arizona, said her group is always concerned the Legislature or Governor’s Office could come for engineers next.

Burnett, who is not an engineer, said, “You do not want me doing your engineering. It is a true science that has to do with true health and safety. You will lose your life if an engineer screws up. A school will fall down.”

The measures often result in heated hearings where people call the licensing boards “cartels” and members of a profession claim there will be massive negative consequences, including the spread of diseases, if a job is deregulated.

HB2011, a bill to allow people to blow dry hair without a cosmetology license, caused an uproar earlier this session after Ducey highlighted the measure in his State of the State address. Cosmetologists turned out, calling the bill disrespectful and saying it could lead to lice and staph infections.

“What you usually see at these things are just ridiculous threats,” said Paul Avelar, an attorney with the Institute for Justice in Arizona. His group has been lobbying for delicensing at the Legislature and suing the government over regulations for decades.

Some bills seek to delicense specific jobs, including behavioral health professionals, embalmers and funeral directors, massage therapists, barbers, taxidermists and athletic trainers. Republican Rep. Paul Mosley, who sponsored all of those measures, said he wanted to “start a conversation” about whether boards and licenses are needed in certain fields. Most of his delicensing bills haven’t gotten a hearing in any committee.

“How dangerous is it to be a massage therapist, and does the board actually prevent bad things from happening? Bad things are still going to happen whether you have a board or not,” Mosley said.

Multiple women alleged last year that they were sexually abused while getting massages at Arizona establishments, which the Arizona State Board of Massage Therapy is now investigating.

Mosley said he’s been targeted by some of the boards, which told their members to contact him about the licensing bills. But the discussion has to start somewhere, he said.

Another bill, HB2532, would prevent cities from requiring licenses or fees for soothsayers, palm readers, phrenologists, buskers, junk dealers and several other businesses.

Ken Strobeck, the head of the League of Arizona Cities and Towns, said the bill is unnecessary because cities don’t heavily regulate professions now. But the occupations listed could be licensed to protect consumers, he said.

“These are the kinds of things that cause problems in neighborhoods and communities and even in the business community that the rest of the neighborhood says, you’ve got to do something about this,” he said.

One measure would ask voters to amend the Arizona Constitution to affirm the “right to engage in occupation.” SCR 1037, sponsored by Republican Sen. Steve Smith and pushed by the Goldwater Institute, says no state law should prohibit or regulate a person who wants to engage in any job unless such a law would clearly be necessary to protect health and safety. The state would have to prove “by clear and convincing evidence” that a rule is necessary to protect health and safety. The ballot referral also says local jurisdictions can’t put their own licensing regulations in place.

Advocates for delicensing say it’s a bipartisan issue, though the major groups that push such measures are decidedly right-leaning.

They point to a 2015 report from the Obama administration that compiled research from a variety of sources on licensing. While the report recognizes licenses can benefit public health and safety, it says “current systems of licensure can also place burdens on workers, employers, and consumers, and too often are inconsistent, inefficient, and arbitrary.”

Indeed, at least one bill this session found unanimous bipartisan support in a committee hearing because it combines two areas that frequently cross party lines, criminal justice reform and occupational licensing. SB1436 prohibits state boards from denying a qualified person a license because they have a criminal record, with some exceptions.

The American Legislative Exchange Council, a conservative group that holds a lot of sway at the statehouse, has model legislation on various licensing issues. But Arizona’s bills go further and address topics not seen in model laws.

In fact, one of the bills Arizona passed last year has since become model legislation for ALEC. The Goldwater-backed “right to earn a living act” gives people a legal pathway to challenge regulations that don’t relate to public health, safety and welfare.

Christina Sandefur (Photo by Rachel Leingang, Arizona Capitol Times)

Christina Sandefur, executive vice president of the Goldwater Institute, said this is a top issue for the think-tank because people have to basically get government permission to enter a whole host of jobs, which gets in the way of economic freedom.

She questioned whether any field needed to be licensed by the government. There’s always private certification, apprenticeships, laws that hold bad actors accountable, even something like a Yelp review that can replace the need for licenses, she said. But she said licenses that truly protect health and safety are more justifiable.

“Most of the licenses today that we see aren’t justifiable,” she said.

And it’s not typically the general public who turn up to advocate for licensing a particular profession, said Avelar of the Institute for Justice. It’s entrenched interests, so getting rid of licenses will always be a battle, he said.

“I would like to think that we have won the policy argument. I don’t think that anyone can say with a straight face that licensing is only good. … We’ve won the policy argument, now we have to win the politics,” he said.

But filing bills to deregulate professions without studying the licenses in-depth beforehand isn’t the best approach, say many whose job is regulated. It’s not a bad idea to look at all the licenses and see what may be changed, multiple industry sources said, but it’s vital to take deliberate, measured steps to study the issues.

Melissa Cornelius, director of the Arizona State Board of Technical Registration, said the board formerly regulated assayers, people who test metals for coins and bullion for quality, but noticed it wasn’t really necessary anymore after talking to stakeholders on both sides of the debate and researching the license and its use. The board asked the Legislature to deregulate assaying, and it did in 2016, she said.

Rushing the process can have unintended negative consequences, she pointed out. In the late 1980s, the state deregulated commercial construction, then saw more fraud and harm to the public and swiftly re-regulated it, she said.

John Glenn, a licensed architect, said the approach to licensing changes so far has seemed disjointed. There hasn’t been an overall look at each license and why it may be needed or discarded, he said. Instead, people who are regulated are constantly looking out to see if their livelihoods will end up in a bill, he said.

The biggest challenge has been the broad brush strokes with which the think tanks, Governor’s Office and Legislature have painted licenses, Glenn said. While deregulating something like hair-braiding, which the Legislature did in 2004, makes sense, getting rid of highly technical licenses is scary, he said.

“When we’re just haphazardly throwing stuff out there and seeing what sticks … how do I know architects aren’t next?” he wondered.

Daniel Scarpinato, the governor’s spokesman, said certain professional licenses will bubble up if something “ridiculous” happens, as was the case for a man cutting the hair of homeless people who was then investigated by the Board of Cosmetology, which dismissed the complaint.

The governor thinks there does need to be an overall look at licenses, why they’re required and what could be canned or added, Scarpinato said. It’s necessary to look at all licensed professions and see what the point of regulation is, who it’s protecting, and whether health and safety are compromised without licenses, he said.

“I think there may be an illusion that by a faceless government board at the Capitol putting their stamp of approval on it and charging people a fee that that is providing the public some guarantee and often it’s not. It’s simply a way for incumbent interests to limit who can participate in a certain field of work,” Scarpinato said.

2 comments

Great article. I think some businesses gain a competitive advantage by being allowed to control the market with licensing. I’m a restaurant owner who doesn’t have too many issues with it, but my friends in other industries definitely do.

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